Chapter One

1.1 Introduction

The concise oxford dictionary defines bail as security for the

appearance of prisoner on giving which the accused is released

during pending of trial. In the same dictionary the meaning of

the world bail as a verb is giving as to admit to bail to relapse on

security given for appearance. According to the chamber

twentieth century dictionary, bail is the security given and used

as a verb, it means to set a person frees by giving security for

him or to release on the security of another. The word bail is

derived from the old French verb bailer who means to given or

deliver according to wasters new international. According to the

shorter ok for English Dictionary the word bail is relation to the

tatting alular means to bear a burden. In judicial dictionary bail

is defines as follows; Bail is when a mean is taken or arrested

for felony, suspension to felony indicated of felony, or bail able

1
offering surety to those which have authority to bail him which

sureties are bound for him to the kings use in a creating sum of

money or body for body, that be shall appear before the justice

of goal delivery at the next sessions, etc. Then upon the bounds

of those securities as is aforesaid he is bailed, that is to say set a

liberty until the day appointed for his appearance.

In a civil mater the term bail applies to those persons who

become sureties or bind themselves either to satisfy the plaintiff

in respect of this debt or costs or to surrender the defendant in to

custody if the judgment is against him and he fails to satisfy it.

In the law lexicon, bail is defined as to set at liber5ty a persons

arrested or imprisoned or security being taken for his

appearance on a day and at a place certain, and such security is

called bail because the party arrested or impersonal is delivered

in to the hands of those who bind themselves for his

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forthcoming. In order that he may be safely protected form

prison.

1.2 Objectives of Research:

The objective for which this research paper has been prepared:

1. To sort out on which situation an individual is competent

to apply for the bail,

2. To figure out the value of the bail in present perspective

and the abuse of the bail ,

3. To understand the proceeding more specifically,

4. To understand the legal importance of a bail,

5. Finally to go through the different aspect of bail.

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1.3 Research Methodology:

The research methodology of this research paper has been

analytical. The paper defines and describes different terms and

proceedings that an accused have to follow to apply for the bail.

The research paper shows and describes the importance and

value and even the abuse of the bail in detail. It has been an

effort to include every aspect of bail as a whole.

I have collected the information's from teacher and different

books journal, research papers, magazines and others different

sources and also annual report published by the NGOs. So this

information are secondary resources.

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1.4. Definition of Bail

Bail is matter of procedure privilege at the most, and not an

accused right, at least until it is granted. Where the statutes does

not contain a specific provision in the matter; view that no

procedure can be adopted however reasonable and report it may

be u8nless there is an express provisional sanctioning it in the

criminal procedure code is hardly courted and the correct

principle is that is matters of procedure a particular procedure

should be permitted if it is not prohibited. Therefore, bail may

be granted in such class on general principles.

The basis conception of the word bail is release of a person from

the custody of police and delivery into the hand of sureties who

undertake to produce him before court whenever required to do

so. An accused person is said at common law, to be admitted to

bail at common law, to be admitted to bail, when he is related

from the custody of the officers of the court and is default of so

5
ding are it liable to forfeit such sum as is specified when bail is

granted.

The term bail in English common law as explained in

encyclopedia Britannica means the freeing or setting at liberty

of one arrested or impressionable upon by action, either civil or

criminal, on surety taken for his appearance on a certain day and

at a place named. The surety in termed bail, because the person

arrested or imprisoned is placed in the custody of those who

bind themselves or become bail for his due appearance when

required. So he may be reserved by them if they suspect that he

is court, when they are discharged from further liberty. The

sureties must be sufficient in the opinion of the court to answer

for the rule only householders are accepted; an infant would not

be accepted. Bail is obligatory in all summary cases. It is also

obligatory in all misdemeanors, except such as have been placed

on the level of felonies; viz; obtains or attempting to obtain

property on false pretences receiving property so obtained or

6
stole, perjury or subornation or perjury, consentient of birth,

willful or indecent exposure of the person, riot, assault in

pursuance of a conspiracy to raise wages, assault upon a police

officer in the execution of his duty or upon any one assisting

him, neglect or breach of duty as a officer, any perocesctuioin of

which the costs are payable out of the country or brought rate or

fund.

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2 Categories of offences

Criminal procedure code has under 5.4 (b)

Categories offences of bail able and non -bail able. The

offences under each of the heads have been specified in the

schedule to the code.

A. Bail in bailble offence

Section 496; cr. p. c. provides that in the cases of bail able

offences the persons accused has an indefeasible right to grant

of bail subject of course to satisfactory sureties being offered, if

sureties are considered necessary. The provisions of the section

are mandatory and the court or the officer in charge of the police

station, as the case may be, is bound to release the person in

custody who is accused of a bail able offence, on bail, provided

he is prepared to give, it or on recognizance’s.

The seriousness of the offence is immaterial for the purpose of

bail, provided that the offence is bail able. Where the accused is

8
change with a non bail able offence but it is found that the

offence, if any made out on the facts was bail able the accused

must be bailed out. The court has no discretion must be bailed

out. The court has no discretion matter. Where the High Court

ordered that bail may be granted by the Magistrate after

recording some evidence and the Magistrate fund that the charge

against the accused could be only for bail able offence, he was

right in admitting the accused to bail without recording any

evidence.

History of Bail

The United States’ bail system has evolved from a system

developed in England during the Middle Ages. In 1677, the

English parliament passed the Habeas Corpus Act, which,

among its provisions, established that magistrates would set

terms for bail. The English Bill of Rights of 1689 declared

restrictions against “excessive bail” and later inspired the

Virginia state constitution and the Eighth Amendment to the

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United States Constitution. The Sixth Amendment to the

Constitution states that all people under arrest must “be

informed of the nature and cause of the accusation” they face

and also allows a person to demand bail if he or she is accused

of a bailable offense. Bail law in the United States remained

relatively unchanged from 1789 until 1966. In 1966, the U.S.

Congress passed the Bail Reform Act, which was designed to

allow for the release of defendants with as small a financial

burden as possible. Before signing the act, President Lyndon B.

Johnson gave a speech that contained stunning examples of how

the bail system had hurt people in the past. Here’s one

particularly disturbing example: “A man spent two months in

jail before being acquitted. In that period, he lost his job, he lost

his car, he lost his family -- it was split up. He did not find

another job, following that, for four months”. Other anecdotes

related similar stories: poor people spending months in jail only

to later have the charges dropped; others forced to sit in jail,

unable to work, only to be found innocent of all charges. In

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short, the bail system was biased against the poor and filling

jails with people who should be out on bail.

The next major revision to U.S. bail law came with the Bail

Reform Act of 1984, which replaced its 1966 predecessor.

While the previous Reform Act had helped to overturn

discrimination against the poor, it had left open a serious

loophole that allowed many dangerous suspects to receive bail

as long as they didn’t appear to be flight risks. This new law

stated that defendants should be held until trial if they’re judged

dangerous to the community. The law also established new

categories of who could be held without bail -- mostly those

charged with very serious crimes, repeat offenders, the

potentially dangerous and anyone who might be a flight risk.

And finally, the act stated that those who were eligible for bail

had to have a bail hearing.

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For more information on bail and related topics, check out the links

on the next page.

Purposes:

The object of keeping an accused person in detention prior to, or

during the trial is not punishment but-

• to prevent repetition of offence with which he is charged, and

• to secure his attendance at the trial

However, every criminal proceeding is based on a prima facie

assumption of guilt and again there is a presumption of

innocence in favor of the accused. Bail serves the purpose of

presumption of innocence. And at the same time, the conditions

of bail like appearance in the court on fixed date and time serves

the purpose prima facie assumption of guilt against the accused.

There are varieties of purposes behind granting bail. This may

be, for example, for appearance before a court; for presenting

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appeal; pending reference revision; or for the purpose of giving

evidence etc.

Bail by Police:

An officer in charge of police station ids bound to grant bail in

bail able cases, and in improper refusal to do so will amount to a

violation of duty. A person arrested by the police under s. 55 of

the code should be given the option of release on reasonable

being furnished. The bail should not be excessive and no

needless impediment should be place in the way of being

admitted to bail. The intention of the law is that in such a case

the man is ordinary to be set t liberty and it is only when he is

unable to furnish such moderate security, if any, required him as

is suitable for the purpose of securing his appearance before the

court pending inquiry, that he should remain in detention.

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Conviction on bail able offence:

Section 496 will not apply when an accused person is convicted

of an offence there is no general offence is entitled as of right to

be enlarged on bail during the tendency of this appeal against

conviction.

Bail is always in the discretion of the court and this discretion

has of necessity to be exercised upon the facts and

circumstances of each case according to sound judicial

principles.

B. Non-bail able offence:

Whenever a court requires accused persons to furnish a bail

bond, the terms of the bail should normally be for attendance

and other conditions should not be imposed. This would be

more so in a cases where the accused is called upon to be of

good behavior; since there is a separating distinct provision of

law for this purpose. It would be improve to impose such

14
condition in a bail bond and to ignore the provision of the code

which provide for such cases. But in the cash of non-bail able

offences a court may while granting bail to the accused impose

conditions other than fining of bail for the attendance of the

accused. Such conditions will not be illegal; An order imposing

a condition that the accused should confine their movements to

the municipal limits of the town as long as the session case way

pending and report themselves twice a day to the police station

was held to be not illegal. Where a woman is accused of man

bail able office and the situation was such that all her relations

within prohibitive degrees were arrayed against her and the

court ordered that she should furnish surety of one of such

relatives. The law does not contemplate the incorporation of

condition in the bail bonds, but it does not say that the courts

have no powers while granting bail to make sure that the

offences allegedly committed by the accused persons are not

repeated by them. Therefore, where the petitions have invoked

the special jurisdiction of the high court for grant of leave to

15
appeal against the high courts order refusing bail it is essentially

a matter of discretion with court whether or not to grant this

leave on a consideration of the circumstances of the cases. It can

not be argued that the court has no powers to lay down

conditions on which it would grant leave in a given case.

Right of bail:

Bail is a matter of procedural privilege at the most, and not a

right of the accused at least until it is granted. The provisions

regarding bail are essentially a part of the law of procedure, and

as such, must be regulated by the law under which a particular

trial is held. The commission of an offence does not carry with it

a right of bail, such a right is dependent on the provisions.

Contained and statute and to the statute alone can the court look

for any right which the offender claims. Where the status does

not contain a specific provision in the matters; the view that no

procedure can be adopted, however reasonable and proper it

16
may be, unless there is an express provisions sanctioning it in

the criminal procedure code, is hardly correct and there correct

principles is that in matters of procedure, a particular procedure

should be considered to be permitted if it is not prohibited.

There fore, bail may be granted in such cases on general

principles.

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 Chapter Two

General provisions of Bail

a. When an accused surrenders in the court and applies for

bail, the subordinate court have jurisdiction to release

him on personal bond.

b. The courts should be liberal in this matter but the facts

and the circumstances of each case should be

considered and taken into account.

c. In cases of women and children courts should refer to

release them on personal bonds pending the disposal of

their bail applications as there is always a fear of sex

abuse and child awes in jail as well as police custody

and no one likes to report such outrages to the

authorities out of shame or other reasons.

d. The bail applications should be decided as expeditiously

as possible and should not be allowed to remain

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 pending for long. If practicable the bail applications

should be considered the sum up.

2. Interim bail

No Magistrate, Sessions judge or any courts he jurisdiction to

grant interim bail during the tendency of bail application in that

court. Order granting short term bail quashed. It the magistrate /

sessions judge feel that such a course should be adopted and it is

always open to them chatter to dispose of the application on the

same day and in the alterative release the accused on executing

personal bond till the disposal of the application. It may be also

pointed out that the application is entitled to claim the benefit of

the provides to section 497 (1) Cr. P.C. Which contains special

provision for bail to women minors under 16 years of age and

sick or infirm persons no. Magistrate or Session Judge is

empowered to grant interim bail during the tendency of the bail

application.

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ail the session judge should dispose of his application. Ad

interim bail can not be allowed to continue simply because an

appeal against conviction is pending in the high court division.

Interim bail allowed continuing further on specific terms.

3. Temporary Bail

The court which has authority to try an issue and grant a relief

has authority and jurisdiction to consider and dispose of all

incidental questions pertaining to it. If a court has authority to

decide the matter, it has authority to consider a temporary bail or

parole or dealing with the custody of the accused and manner of

it till the required material is collected. The Delhi High court

granted bail in a security scam case on the grounds that the role

assigned to the accused did not prima faces make out any grave

offence maximum punishment for the offence being only 5

years no charge sheet having been submitted even after lapse of

two months and no police remand was sought for however the

high court imposed condition that he should not level the

20
country and join the investigation as and when called for and his

passport should be kept by the court possess jurisdiction to

relapsed and accused on interim bail pending final disposal of

the bail application. No hard and fast rules can be laid down in

this regard. However few illustrations can be given where it

would be proper to grant such release.

1. Offence of trivial nature in which bail is generally

granted.

2. Women, children, minors and aged persons of 70 years

or more should invariably be relapsed on interim bail.

3. Students whose examinations are to commence should

also be given interim relief.

4. Cases in which accusations appear to be frivolous or

male fide. But release on interim bail is no ground for

grant of bail which has to be made only on merits. Once

an application for bail before arrest is admitted by a

court for regular, hearing it should in fitness of things

grant interim bail to the petitioner so that he is not

21
 arrested in the meanwhile because other wise there is no

point in entertaining and admitted his application.

5. Consideration of evidence of bail stage: It is not fore the

court of the stage of bail to evaluate the evidence but

merely to considered as to whether upon the material on

the record one of the ways in which can be done is to

consider as to whether upon the material on the record,

it on the record if no further evidence is called or be

found guilt or evidence is called or not. If he can be

then that would be a case where reasonable grounds do

exist for forming the belief required under section 497

of the code of criminal procedure and the high court

would be justified in refusing bail.

6. Condition for grant of bail: While granting bail the high

court should not impose such condition which would

amount to denial of bail. Where there for, bail was

granted by the high court to the accused on furnishing

security of taka 1 lack in case or in fixed deposit in

22
nationalized bank with due sureties residing in the state

for like amount, the condition amounted to denial of

bail and is liable to be set aside. The conditions should

not be harsh, oppressive and virtually resulting denial of

bail. Accused prosecuted for offence relating to illicit

distilled liquor. He was directed to be released on bail

by depositing security with one surety in addition to bail

bond. While granting bail in billable offences the court

has no power to impose any condition except the

demanding of security with sureties. Where the accused

where ordered to execute bonds with secreting and a

condones whaps also imposed that they would not enter

upon the land in dispute for a particular period and that

they would not commit any breach of the peace. The

conditions where opposed to law and were deleted.

Similarly bail can not be granted subject to the

conditions that the accused shall desist from a

repetitions of the offence with which be was charged.

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7. Persons who may be enlarged no bail: The provisions of

section 496, criminal P.C are wide enough to cover the

cases, not only of an accused person, but also of a

person complained against who is present before the

court, although be may not have been hauled up as an

accused person. But in such case3s he can not be

considered to have been arrested at any stage prior or

subsequent to the grant of bail. Witness: A witness

arrested under a warrant and brought before a

magistrate can be enlarged on bail.

8. Stage of which bail may be granted: A judge has

jurisdiction to grant bail where the applicant is in the

lock up under arrest and it is not necessary in order to

invest the judge with such jurisdiction, that the accused

person must be put up before the court. Bail can be

granted at any stage of the proceedings, even after the

commencement of the trail, or after his conviction when

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 he files an appeal against it, or when he is arrested on

appeal against his acquitted.

9. Reasonable ground: It was not permissible to allow bail

to an accused person where reasonable grounds to belie

that he was committed an offence were shown to exist.

Conversely where the court was satisfied that no

reasonable grounds existed to connect the accused with

the liability it was free to enlarge him on bail. The

actual test for grant or refusal of bail, there fore rested

on availability of reasonable grounds. Reasonable

grounds is an expression which connotes that the

grounds be such as would appear sufficient to a

reasonable man for connecting the accused with the

crime with which he was charged. It such grounds exist

tending to connect the accused with the crime, bail

should be refused, without the need to go into a duper

appreciation of the merits of those grounds and the

evidence on which they rested which function was to be

25
assuming at the trial stage. If is not the prima facie case

against the accused but reasonable grounds for

believing that he has been guilty which prohibits

granting of bail. The onus is on the prosecuting to

disclose those reasonable grounds.

26
 Chapter Three

Guiding principle of granting bail

As a general rule bail should not be with held as punishment

unless the facts warrant such course. Courts exercising bail

jurisdiction should refrain from including in elaborate reasoning

in their order in justification of grant or no grant of bail. Bail

was not to be refused to accused by way of punishment and the

prosecution was required to show existence of reasonable

grounds and satisfactory evidence in support of offence alleged

against accused and if prosecution failed to establish same then

matter would become for further enquiry into the guilt of

accused and bail in such circumstances should not be withheld.

While granting bail the court must consider the gravity of the

offence of which the accused is charged, the character of the

evidence circumstances which are peculiar to the accused, a

reasonable possibility of the presence of the accused not being

27
secured at the trial, reasonalable apprehension of the witnesses

being tampered with the larger interests of the public or the state

and similar other consideration.

The matters for consideration in an application for bail may be

enumerated as follows:

a. Whether there is or is not a reasonable ground for

believing that the applicant has committed the offence

with which he is charged.

b. The nature and gravity of the charges.

c. Severity of degree of the punishment which might fall

in the particular circumstance is case of a conviction.

d. The danger of the alleged offence being continued or

repeated assuming that the accused is guilty of having

committed that offence in the past.

e. The character and means and standing of the applicant.

f. The danger of the application absconding if the is

relapsed on bail.

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 g. The danger of witness being tampered with.

h. Opportunity of the applicant to repaired his defense and.

i. The fact that the applicant has already been some

months in jail and that the trial is not likely to conclude

for several months at least.

While dealing with a bail application the high court should

take in to account the various considerations such as-

i. Nature and seriousness of the offence.

ii. The character of the evidence

iii. Circumstance peculiar to the accused.

iv. a reasonable possibility of the presence of the accused

not being secured at the trail;

v. Reasonable apprehension of witness being tampered

with.

vi. The larger interests of the public or the state and

29
 vii. Similar other considerations which arise when a court is

asked to admit accused to bail in a non bail able

offence.

Chapter Four

Application for Bail

1. Form and contents

An application for bail or an affidavit supporting such

application should state clearly the grounds on which bail is

asked for and the reasons for such grounds.

Application to high court

An application for bail to the High Court should not include

defamatory allegations containing attacks on the trying

magistrate or other officers irrelevant and improper in

themselves. It is the duty of the defense counsel to satisfy him

about the correctness of the allegations made by him in the

application. It is not consistent with the responsibility of a

30
counsel to make averments of fact in applications and partitions

on information proper for the officer to receive applications in

which averment o fact are made, when those of some one who

says that those averments our true.

2. Forum for application

Where the high court ordered that bail may be granted by the

magistrate after recording some evidence but the magistrate

found that the charge against the accused could be only fore bail

able offence he was right in admitting the accused to bail

without recording any evidence. If a magistrate has jurisdiction

to try an accused, he has the power to enlarge him on bail under

section 497, Cr. P.C. If a Magistrate has no jurisdiction to try a

case he has no power under section 497, Cr.P.C. grant bail to the

person arrested. In such a case the session judge and the high

court can release the arrested person on bail. A part from the

provision of section 498, a court of session an accused who has

been committed to it to take his trial. Section 497 deals with the

31
powers of the trial court to grant bail while s. 498 deals with the

powers of the high court and the Court of Session to grant bail.

Chapter 39 excludes the existence of any additional inherent

owner high court relating to the subject of bail. Section 516-17

Cr. P.C. confers no such power.

Although the jurisdiction of the superior court where two courts

have concurrent jurisdiction is undoubted ordinarily and in the

absence of special circumstances the superior court should not

entertain a bail application without the inferior court being first

moved. But this practice is not inflexible, because section 498

gives unlimited judicial discretion to the high court in the matter

of granting bail. There is no hare to the high court entertaining a

bail. Application directly if peculiar such special circumstance

the application will not be entertained by the high court. It has

been held that where the once before, it had made some remarks

upon the heavier of the petitioner which would be likely to

prevent the sessions judge from giving a wholly free and

32
independent consideration to the case, there is no bar to the high

court entreating a bail application direct.

Direct application to High Court

It is to be punted out that usually a petition for bail of an

arrested accused in not entertainer directly by the high court and

it is generally insisted that before coming to that court the

accused must approach the subordinate court in the first

instance. This procedure however, is subject to certain

exceptions, one of which is that where an accused was arrested

as a measure of preventive detention but the relevant detention

order was later on rescinded of which rescission the disclosure

was made only in the high court when the habeas corpus matter

come up for consideration then if the accused who is surprised

in this manner by the prosecution itself, files an application for

being released on bail the rule of directing the accused to

approach the courts below may not be insisted upon. The mere

fact that the applicant had traveled all the way to the seat of the

33
high court and has incurred expenses in engaging a counsel is no

ground for entertaining an application directly in the high court.

3. Second application made to different judge

Where a bail application in a cases in refused by a judge of the

high court and a second application is made to another judge,

the latter con not go in to the merits of the case over again. He

should as a rule of propriety transfer the application to the judge

who heard the first application. He should not grant bail on his

own. This is specially so where the earlier order is challenged as

incorrect which can be done only before the Supreme Court.

One judge of the high court can not sit in appeal against the

judgment of another judge. Where the judge who passed order

on the first application was not available and was not likely to

be available for some time to come the bail petition may be

heard by another judge.

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4. Application to high court

The high court does not normally entertain direct application for

bail.

5. Transfer of application

The transfer of a bail matter or to put it in other words the

withdrawal of the sail application of the petitioner by the session

judge to his own court without notice to the petitioner is

certainly a matter of prejudice to the petitioner and the order

would call for being set aside on this ground alone.

35
 Chapter Five

Anticipatory Bail before Arrest

1. Meaning

A bail in anticipation of arrest or detention is termed as

anticipatory bail. A person is entitled to be relapsed on bail.

When he is arrested or is brought before a court. The judicial

opinion is conflicting on the issue whether a person can apply

for relapse on bail in anticipating of arrest or detention.

The Alahabad High Court held that bail can not be granted to an

accused that had neither been arrested nor detained by a police

nor appeared personally in court. The decision was based on the

following reasons:

1. The liability of a person to arrest is no restraint.

Nationally ever person is liable to arrest for anything

which the person having authority to arrest consider him to

have committed.

36
2. When a person appears in court his very physical

presence resulted in his placing himself in them custody of

the court. Whether the court actually orders his being

taking in custody or allows him bail at once, nationally it

must be held that the person was in the custody of he court

and got his relapse on bail.

3. Appearing through counsel can not naturally result

is even national custody of the court over the person

concerned. It may be that the applicant might give his

address in application but there can not be any undertaking

that he would not more away from that place. The word

appear in section 496 and 497, Cr. P.C. does not

contemplate the appearance through counsel.

4. A person who is not in custody stands in no need

of order of bail. If he is not in custody he is free to go

wherever he likes, in the case of such a person an order of

bail can be rightly considered to be an unjustified restraint

on his movement instead of any to him.

37
2. Main Conditions

The main conditions to be satisfied before exercise of

jurisdiction to allow pre-arrest bail under see. 498 Cr. P.C ares-

1. That the petitioner should physically surrender the

court.

2. That on account of ulterior motives part clearly on

the part of the police, there should be

apprehension of harassment and under irruption

humiliation by means of unjustified arrest;

3. That its should be otherwise a fit cases on merits

for the purpose of bail. In this behalf the provision

contained in section 497, Cr. P.C. would have to

be kept in mind.

4. That unless there is reasonable explanation, the

petitioner should have earlier moved the sessions

court for the same relief under section 498, Cr.

P.C ordinarily an application for bail before arrest

should be presented to the session judge.

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3. Conditions enumerated to grant anticipatory bail

The considerations which weight with the court while granting

bail under section 497 or section 498, Cr. P.C are:

1. The nature and gravity of the circumstances in which

the offence is committed.

2. The position and the status of the accused with

reference to the victim and the witnesses.

3. The likelihood of the accused fleecing from justice.

4. Of repeating the offence

5. Of jeopardizing his own life being faced with a grim

prospect of possible conviction in the case.

6. Of tampering with witness;

7. The history of the case as well as of his investigation;

and

8. Other relevant grounds which may apply to the facts

and circumstances of a particular case.

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4. Duration of anticipatory bail

In Gurbaksh Singh Vs. State, the court made it clear that the

pertain of an order p[assed under sec. 438 (1) need not

necessarily be limited in point of time. the court may if there are

reasons for governed by Terrorist Areas. Anticipatory bail under

sec. 438 can be granted to persons accused of offence under the

Karnataka Forest Act, 1963 and apprehending arrest by the

Range forest officer.

5. Cancellation of anticipatory bail

Anticipatory bail granted by the high court can only be

cancelled under sec. 439 (2) of the code. It has, however, been

held that when an ad interim anticipatory bail was granted to the

applicant and such interim bail was set aside on hearing both

sliders, such and order is not an order of cancellation of the bail.

Therefore, the principles no which the bail can be cancelled

would not be attracted when interim anticipatory bail is canalled

on hearing both side. It has been held that where an anticipatory

40
bail is granted on giving full hearing to the public prospector

and repeated attempts to have it cancelled have failed it can not

be cancelled unless fess materials are placed and the conditions

for cancellation of bail as provided under sec. 439 (2) are

fulfilled. Rejection of bail in a non bail able case at the initial

stage and the cancellation of bail so granted, have to be

considered and dealt with on different basis. very cogent and

overwhelming circumstance are necessary for an order directing

the cancellation of the bail, already granted. Generally speaking

the grounds for cancellation of bail, broadly illustrative and not

exhaustive are interference or attempt to interfere with the due

course of admistatioin of justice or evasion or attempt to evade

the true course of justice or abuse of the concession granted to

be accused in any manner.

41
 Chapter Six

Bail in case of woman aged person, sick infirm and mental

disturbed person:

1. Woman accused

The law permits granting of bail even in a case where there are

such resonate grounds for refusing bail in the case of any

woman or any sick of infirm person. Accused a woman detained

in judicial lock up with sucking body. Alleged confessional

statement exculpatory in nature and not involving accused in

commission of offence. Accused granted bail in circumstances.

Even in cases where a person is accused of an offence

punishable with death or imprisonment for life and there appears

reasonable ground for being that he has been guilty of such

offence, the court may release the accused on bail if the person

is under the age of 16 years or a women or any sick or infirm

person.

42
The case of women descries special consideration. Merely

because chancre sheet has been submitted against her under

section 302/109/34 penal code, she is not automatically debarred

from getting bail.

Under section 497 it is open to a court to grant bail to women

even in cases where she is accused of an offence which is

punishable with death or imprisonment of life.

But a women con not claim the benefit of the concession as

provided in the first provision to sub section of section 497 Cr.

P.C as a matter of right. The court must exercise its discretion

on a proper appraisal of the facts and the surrounding

circumstances of the case not unmindful of the fact that this

concession is provided in heinous cases of murder. Grant of bail

to women is not a matter of right yet interim of legislature

appears to be that bail should invariably be granted to a woman

43
unless any special circumstance exists on record to warrant

refusal of bail.

A court should grant bail to a woman even when she is accused

of murder. Where there was no evidence to show that woman

accused has been party to conspiracy to commit murder they

were enlarged on Bain. In such circumstances the existence of a

suckling baby may be an additional ground in favors of grant of

bail.

2. Age of accused

Age by itself would not be a ground for grant of bail. All the

attending circumstance are to be taken into consideration.

However, it must be kept in mind that prison to section 497 (1)

Cr. P.C constitutes an exception invite case of heinous offence

punishable with death or life imprisonment.

44
Accused a boy of 12 days short of 16 years age at time of

occurrence. Case falls within provision of section 497 (1).

Proviso however is discretionary. Release of a accused on bail is

not. Accused giving most serious Knife blow on back of chest

thereby showing him to be a person of desperate character not

entitled to bail. Where grounds existence to believe that the

petitioners where not guilty of an offence punishable with death

or imprisonment for life and the accused was a young man of

16/17 years old, the case was held to be covered by provisos

section 497 Cr. P.C. and bail was all wed.

A delinquent juvenile is entitled to grant of bail unless court

comes to conclusion that there appeared to be reasonable ground

for believing that relapse of juvenile was likely to bring him in

association with known criminal or expose him to moral danger

or his releases would defile elands of justice.

45
Accuse appeared to be a young boy and had no previous record.

Ground existed for further inquiry also into guilty of accused.

Accused was released no bail in circumstances.

3. Bail on ground of sickness

Person actually sick or infirm may be released on bail even in

case of charge involving death or classes’ sentences. For grant

of bail on ground of sickness it is not essential that the aliment

should be of an alarming nature which may endanger the life of

accused, but the initial requir4ement is the satisfaction of the

court. Bail was sick person and was an old heart patient and had

been operated for by pass surgery and was on regular

medication and diet.

Accused contended that his health condition was such that he

could not take strain of any nature and his remaining in jail

would be detrimental to his health and life. Considering the

medical certificate issued by the National Institute of

46
Cardiovascular Disease, treatment and care of cardiac ailment of

accused was not possible in jail. Accused was also entitled to

grant of bail as two main accused heed already been released on

bail. Petitioner accused was ordered to be relapsed on bail, in

circumstances.

Accused suffering from active pulmonary. Tuberculosis of both

lungs with multiple cavitations and advised regular treatment for

a considerable period. His wife (Other Co-accused having a

small suckling child to be looked after). Both accused granted

bail in circumstance. When want to be medical treatment entails

likelihood of risk of his bail may be granted.

Every sickness or infirmity can not be ground for bail. The

nature and seriousness of the sickness has to be seen. Where the

proper treatment of the accused is possible in jail he is not

entitled to bail on the ground of Sickness. When a wife or other

dependent of the accused in of the accused is suffering from a

47
chronic disease and the trail is not start in the near future bail

may be granted for a short period.

4. Sick and infirm:

A Sick or infirm may be released on bail even in a case of

capital punishment.

48
 Chapter Seven

Refusal, Rejection and Cancellation of Bail

Refusal of Bail

1. Introduction

In refusing to grant bail it is generally necessary to see whether

there are reasonable ground for believe that the accused has

committed some offence and secondly that whether he is likely

to tamper with the evidence during his enlargement ob bail.

The court is take in to consideration the gravity of the offence

alleged, the heinousness of the charge, and the possibility of

abscission and tampering with the witness and on the

consideration prayer for bail may be refused.

While considering the qu3siton whether a case fell within the

prohibition constrained in sub section of section 497, CR. P.C.

the courts are not supposed to keep in view only the maximum

sentence of transportation for life. Provided in the relevant law.

49
2. Bail may be refused to an accused person: on certain grounds:

1. Where that is likelihood of the accused absconding it he is

released on bail.

2. Where there is likelihood of the accused tampering with

the prosecution evidence.

3. Where there are the dangers of the offence being continued

or repeated if the accused is left on bail.

4. Where the character, behavior and previous conduct of the

accused are such that it is desirable to leave him at large.

5. Where taking the nature and gravity of the offence, the

nature of the evidence is support of the accusation and the

severity of the punishment which the convicting will

entail, consi9deratin, the court is of onion that he accused

should not be enlarged on bail.

50
Rejection of Bail

Grounds of Rejection

Where the accused was released on bail but subsequently the

was found abusing his bail, the Madras high court cancelled his

bail relying on the illustrative grounds given in Aslam Baba Lal

Desai Vs. Maharshatra which are as under.

Where the accused

1. Indulges again in similar activities,

2. Interferes with course of investigating

3. Attempts to tamper with evidence

4. Threatens witness,

5. Likelihood of his fleecing to other country,

6. Makes himself unavailable to investigation agency

beyond reach of surety.

A bail was not allowed to be cancelled on the basis of certain

factors of which the court granting the bail was fully aware.

Where bail was granted by the then presiding judge at the initial

state it could not be cancelled shoot by the successor judge after

51
filling of the charge sheet in the case unless proper application

for its cancellation was moved and a case for its cancellation

was made our after hearing both the parties. Where the session

judge granted anticipatory bail, the high court refused to cancel

the bail as no cogent reasons or overwhelming circumstance

could be shown for cancellation of the bail.

2. Rejection of successive bail application by High Court

Where in spite of two successive bail applications having been

rejected by the high court in a number case, the magistrate

granted provisional bail to the accused it was held that the

course adopted by the magistrate was not only contrary to the

settled principles of judicial discipline and propriety but also

contrary to the statutory provisions.

3. Rejection of bail:

No person shall be deprived of his life and personal liberty

except according to procedure established by law. Deprivation

52
of freedom by refusal of bail is not for punitive purpose by for

the bifocal interests of justice to the individifual implied and

society affected.

4. Refusal to grant bail after specified period:

A perusal of section 426 (1-A) shows that bail is to be allowed

in such cases if the appeal has not been disposed of within two

years, but the same could be refused fur the reasons to be

recorded by the high court.

Cancellation of Bail:

1. Principle for cancellation of bail:

Where bail has been granted, its cancellation should no follow

in the ordinary course. There has to be sometime in the nature of

miscarriage of justice or improper excessive of discretion which

alone can justify the cancellation. However, the court has the

power in certain situations to cancel the bail if the facts warrant

no course other than refusal to grant bail. Where victim of a

53
murderous assault sustained as many as nine injuries including

four on the head became semi unconscious at the time of

medical examination and his condition became serious. The

petitioners were allowed bail on the grounds that the callowness

complete against them petitioners were neither bad mashers nor

any apprehension was expressed that they would influence the

prosecution case. Bail was not cancelled. But where the

accusation was of murderous assault on processeciton witness

and giving him a grievous blunt weapon injury on the jaw, just

missing neck but uprooting 2/3 teeth. Bail was cancelled. Where

the person of declassed and was apprehended along with

incriminating knife at the sport. The bail of the accused was

cancelled in spite of his tender age.

2. Grounds of cancellation of bail:

The courts if it grants anticipatory bail must expressly make it a

condition that if the petitioner commits any breach of the terms

of bail, the court concerned will be at liberty to cancel his bail

54
and take him into custody. If has been emphasized that very

cogent and overwhelming circumstance are necessary for an

order seeking cancellation of the bail. Even where prima facie

case is established the approach of the court is not that the

accused should be detained by way of punishment, but whether

presented of the accused would be readily available for trial or

that he is likely to abuse the discretion granted in his favor by

tampering with evidence. Bail may be cancelled on the

following grounds.

1. When the person on bail commits the very offence or

other offence for which he is being tried or has been

convicted.

2. When it is found that the accused is tampering with

investigation.

3. When the accused is found tampering with evidence.

4. When the accused is found absconding or having gone

out of control of sureties.

55
 5. When it is alleged that the accused is terrorizing the

witness and committed acts of violence against the

police.

6. When it is found that the subsequent events make our

non-bail able offence or a graver offence.

7. When the high court found that there was a wrong

exercise of judicial discretion to grant the accused bail.

8. When the circumstances were proved that the accused

has misused the liberty granted to him it is sufficient

ground to cancel bail.

Where once pre-arrest bail is granted to accuse very strong

reasons and grounds would be require for cancellation of the

same.

56
3. Cancellation of bail on ground of suppression of material

fact

Where an accused obtains an order of bail in his favor by

misrepresenting true facts and in fact by playing fraud upon and

an order for bail is bound to be recalled. It appears in

consideration of the materials on record that the accused person

played a fraud upon the session’s judge by suppressing the fact

that earlier their application under section 498 Cr. P.C was

rejected by this court after hearing the parties at length. As it

was not pressed the rafter in order to prevent the court from

passing a harsh order it is accordingly directed in the interest of

justice and for ends of justice that the session judge. Shall take

appropriate action accord to law against the accused persons and

pass an order for their arrest immediately.

57
Consequences of cancellation of bail

The cancellation of pre-arrest bail by the court, of an accused

person who was not in custody and was admitted to interim bail,

did not entail the consequence that he had to be ordered to be

given into police custody. It was emphasized by the Supreme

Court that proper order to pass in those circumstances was to

cancel ad-interim bail and to leave the accused person to be

death with by the police, as they thought fit.

58
 Chapter Eight

Bail Bond, Sureties and Forfeiture of Bail Bond

1. Bail Bond

According section 499, Cr. P. C lays down that

1. Before any person is released on bail or released on his

own bond, a boned for such sum of money as the police

officer or court, as the case may be thinks sufficient

shall be executed by such person and when he is

released on bail, by one or more sufficient sureties

conditioned that such person shall attend at the time and

place mentioned in the bond and shall continue so to

attend until otherwise directed by the police officer or

court, as the case may be.

2. If the case so requires the bond shall also bind the

person released on bail to appear when called upon at

the high court, court of sessions or other court to answer

the charge.

59
2. Bond without sureties

Where a person accused of a bail able offence holds ha high

position in government service he should be released on a

personal bond without sureties instead of bail.

3. Conditions in bail bond

The court can grant bail on the condition that the person shall

attend at the time and place mentioned in the bail and that would

cover nonattendance before the police but it does not over such

conditions as have been imposed in criminal cases, station twice

daily in the morning and in the evening to give hajira before the

police officer. A conditions that the accused will not deliver any

speech until the disposal of the case under section 124-A, penal

code pending against him, or that the accused should not reside

within the limits of a certain town for a certain town for a

certain period or that they should not can act any drama is

beyond the jurisdiction of the magistrate. The court can not

incorporate in the bail bond a condition that the accused should

60
desist from repletion’s of the offence charge. Similarly the court

can not put any restrictions on his movements. When the

accused, though granted bail, is ordered to be sent to an

institution and live there under the order of the court, and is not

released within the meaning of this section.

4. Security

Section 499 Cr. P.C contemplates the execution for a bond with

sureties and not a cash deposit. A Magistrate has no power to

require an accused person to deposit a sum of money in court as

surety for haws attendance in court at a given time. However,

section 513, Cr. P. Code was canceled in the interest of the

person who, because they may be strangers in the locality

position to arrange for bail or able to offer sureties. In the case

of these person if they offer a cash deposit the court is abode in

its discretion to accept that deposit in lieu of a bond but neither

section 499 nor S. 513 of the code conditions any thing which

authorities a Magistrate of his own accord to insist on the

61
deposit of a sum of money as security in the place of a bond. It

is an enabling provision and provides that except in cases of

bonds for good behavior, a court or officer taking bond may in

fit cases, relieve a person of his obligation to execute a bond,

and in lieu there of take cash deposits. The deepest under this

section is in lieu not only of the bond to be executed by the

principal but also of the bond to be executed by the sureties.

5. Fitness of surety

The court has to verify the solvency of the surety and the fitness

of surety before accepting the same. A particular person may be

solvent but he may not be a fit person to stand as surety. Such

determinations being a judicial function in necessarily implied

that the verification should be based upon proper inquire and

there should be some material on record to justify a finding of

this nature.

62
6. Forfeiture of bond

Under section 514, CR. P. C it is for the court to determine

whether the conditions of a bond have been broken and the bond

is forfeited. The provision being of penal nature has to be

strictly construed. A perusal of the provision of this section

shows that three stages are concmplanted for a proceeding under

the section. Firstly, a declaration of forfeiture. Secondly, the

order for payment or to show causer, and thirdly steps to be

taken for the recovery of the amount. The declaration of

forfeiture must be proved upon cogent grinds establishing to the

satisfaction of the court that the forfeiture has taken place.

Advantages and Disadvantages about Bail:

Advantages for the Defendant:

The advantages of bail for the defendant are quite easy to

understand. It allows them the right to remain free until the end

of the trial period, which if they are innocent means they haven’t

63
had to endure any unwarranted jail time, and if they are guilty

gives them that last few weeks, sometimes months with their

friends and family before facing their punishment. During the

time of a trial it is extremely stressful and being imprisoned

during it can make the experience ten times worse and make

meetings with lawyers a lot harder, jeopardizing the case.

Disadvantages for the Defendant:

That being said there are some major financial disadvantages for

the defendant, which if innocent proves an unwanted, unneeded

and unjust waste of money. And if guilty may cause financial

ruin to loved ones who just wanted to help.

It is often criticized but in the US, during the trial period the

court sets a bail amount in relation to the crime, of which the

defendant can pay in order to remain free as long as they attend

all the court hearings. (Obviously if they are then found guilty

they go to jail). In order to pay such a fee the defendant or often

the defendant’s friends or family visit a bail bond agency, who

64
are more than happy to pay the bail for a 10% (sometimes more)

non refundable fee? As long as the defendant attends all court

related dates the agency gets the bond repaid, yet still keeps that

original fee for their services.

The main problem with this, other than profiting off somebody’s

poor life decisions (or somebody totally innocent), is the fact

that if the defendant skips bail the agency may repossess their

home and other assets to cover the bail. If the arrangement was

sorted out by a loved one then the debt could fall on to them,

when all they may have been doing is trying to help. No mother

wants to see their son a criminal.

Advantages for the State:

Allowing a defendant to be released on bail, although maybe

risky cuts the funding needed to detain them. Prisoners have to

fed and looked after, which isn’t free. Ok the cost of one person

isn’t a lot but with thousands of people brought in each week it

can cut a considerable amount of expenses.

65
Although a rather cynical view, if the bail amount isn’t enough

to scare the victim in to showing up in court then the state gets

to keeps the amount which was paid by the defendants bail

agency leaving the debt with them.

Disadvantages for the State:

The major disadvantage that the state might face when granting

bail is that the defendant may never come back, going on the run

or fleeing the country. Although they get paid the bail amount

there may be a dangerous criminal on the loose. In the long run

this may also waste government spending trying to track down

the individual. Many feel it would be safer to keep everyone

detained.

66
 Chapter Nine

6.1 Problems and Findings:

The problem I faced to prepare this research paper has not been

that much. Though there has not been a good number of books

in this regard. The whole issue is described and prescribed in

The Code of Criminal Proceeding.

The Internet has been a great source of information but it

provides only the bail issue of some present significant cases.

The topic being a very important and sensitive one has been

very interesting to work on.

There has not been that much research or study on so far I know.

Though there has been a criticism of bail that makes easier for

an accused to escape the legal proceeding.

67
There should be more careful and strict authority with sufficient

laws to compel the accused to follow.

To prepare the paper I have discuss the issue with some lawyers

and lecturers and professors to clarify the points on which I have

to work on.

After all these problems, I have collected all information which

are necessary to prepare my research paper.

68
 Chapter-Ten

Conclusion

The foregoing discussions reveal that in Bangladesh perspective

it bail is practiced as considerable issue. But it should be

practiced on the basis of merit. In other countries until judgment

is pronounced accursed are free from custody. The concept of

bail emerges from the conflict •between the 'police power' and

to restrict the liberty of a man who is alleged to have committed

a crime and the presumption of innocence in his favour. 'Bail' is

derived from the old French verb 'baillier' meaning to 'give or

deliver'. Bail in English Common law is the freeing or setting at

liberty a person arrested or imprisoned on security or on surety

being taken for his appearance on certain day and a place

named. In other words, bail is the delivery of arrested person to

his sureties upon their giving security for his appearance at a

designated place and time, to the jurisdiction and judgment of

the court. The surety is termed 'bail' because the person arrested

69
or imprisoned is placed in the custody of those (surety) who

bind themselves or become bailer for his due appearance when

required. Surety must be those persons who have authority to

bail the arrested person to appear before the court on a certain

date. It is upon the bonds of those sureties that the person

arrested or imprisoned is bailed, i.e., set at liberty until die day

appointed for his appearance. The effect of granting bail is not

to set the prisoner free from jail or custody, but to release him

from the custody of law and to entrust liim to the custody of his

sureties who are bound to produce him to appear in the court at

a specified time and place. The necessary corollary is that it is

open to the sureties to seize the prisoner at any time and may

discharge themselves by handing him over to the custody of law

and the result would be that he (the prisoner) would be then

imprisoned.

70
Suggestion

I have following suggestion to implement the Bail in Criminal

Cases.

1. Government should take initiative to stop arbitrary

arrest and detention by repeal or amending all Bail in

criminal cases.

2. An option of judicial review should be given to those

who are arrested under such laws.

3. Since our constitution gives the authority of making

preventive detention laws, so the constitution must

contain provision describing the certain specific period

when the law shall be exercised i.e. only in time of

grave emergency or war.

4. Article 33 (3) (b) of the constitution deprived the

detainee from the fundamental rights ensure by article

33 (2) which provides that every person who is arrested

and detained in custody shall be produced before the

magistrate within 24 hours and right to counsel under

71
 article 33 (1) of the constitution and these are

fundamental human rights guaranteed by constitution

itself. Such a provision should be repealed because it is

the clear violation of these rights.

5. The detenu shall be informed immediately about the

grounds of his detention with facts and particulars.

Which enable him to make a effective criminal cases.

6. The opportunity to challenge the legality of their

detention order before a court of justice should be

provided towards all detenu who are detained under

preventive detention laws.

7. They shall be granted immediate and regular access to

lawyer, their family and medical assistance.

8. The detenu shall not be subjected to torture and other ill

treatment in detention.

9. All allegations of oppressions should be quickly and

immediately investigated.

10. The orders and directions should be obeyed entirely,

72
 immediately and strictly.

11. Judicial detention is preferable to executive

detention. In order to ensure the proper functioning of

democratic environment and to maintain the standard of

criminal cases, the above recommendations should be

ensured and practiced.

Eventually, the criminal cases may add aforesaid provision in

our constitution or in the laws criminal cases for which will be

specifically mentioned that the preventive detention law can not

be used by government except in times of emergency, war or

external aggression.

73
 References

Books

1. Miah , Siddiqur Rahman, “The law on bail”: New warsi

Book Corporation, (1st edition, Dhaka, 2002).

2. Hassan, K.E, “Criminal trial, Bail and civil litigation”

Kamrul Book House, 2nd edition, Dhaka 2004

3. Halim, Md. Abdul, “The Legal System of Bangladesh”,

Nazim Book House, 1st edition. Dhaka-2005.

4. Houqe, Md. Zohurul, “The Code of Criminal Procedure”,

Siddique Book House, 3rd edition. Dhaka-2004

74